Attorneys Michael Ryan and Jonathan Zellner recently obtained dismissal on behalf of a city and its former building official in a due process case involving allegations of unreasonable delay in the issuance of building permits. The plaintiff had sought permits to construct a multi-sport facility and claimed that the defendants unreasonably delayed processing the plaintiff’s applications and issuing permits. While the plaintiff obtained the permits for which it applied and constructed the facility, it claimed that the defendants attached conditions to certain of the permits and that the defendants’ actions delayed the opening of the facility, resulting in financial losses. The plaintiff brought substantive and procedural due process claims against the defendants, maintaining that the defendants’ actions deprived it of a constitutionally protected right to the permits and the use of its property.

Attorneys Ryan and Zellner moved to dismiss the complaint in its entirety, arguing, in part, that the allegations in the complaint did not give rise to actionable due process claims. In a decision dated September 30, 2017, the Court, Honorable Robert N. Chatigny, agreed and granted the motion. Judge Chatigny found that the plaintiff had failed to allege the existence of a constitutionally protected property interest, as the complaint showed that the plaintiff had received the permits it needed to build and operate the facility. Judge Chatigny similarly found that the plaintiff had not identified any statutory or regulatory provision that conferred a legitimate claim of entitlement to the permits in a timelier manner or without any conditions attached. Absent a showing that, under state and local law, it was “virtually assured” that there would be no delay or conditions, the plaintiff had no constitutionally protected interest in the permits, and its due process claims were therefore legally insufficient.